Labor has narrowly failed to gain enough support for the Senate to send an extraordinary message to the governor general calling for the sacking of the trade union royal commissioner, Dyson Heydon.
The Coalition government – which had denounced the “serious violation of simple constitutional principles” – persuaded enough crossbench senators to oppose the proposal to result in a tied 34-all vote on Tuesday afternoon. A motion requires a majority to pass.
The Coalition was joined by four crossbench senators – Nick Xenophon, John Madigan, Ricky Muir and Bob Day – in voting against the motion, while David Leyonhjelm and Dio Wang abstained.
Jacqui Lambie and Glenn Lazarus were the only crossbenchers to join Labor and the Greens to positively support the address to the governor general, Sir Peter Cosgrove, who normally acts on the advice of ministers.
The proposed address would have said that Heydon “by his conduct in accepting an invitation to speak at a function raising campaign funds for the Liberal party ... has failed to uphold the standards of impartiality expected of a holder of the office of royal commissioner”.
“Accordingly we respectfully request Your Excellency to revoke the letters patent issued to the Honourable John Dyson Heydon AC QC,” the proposed address said.
The clerk of the Senate, Rosemary Laing, provided advice that the most common form of address to the governor general was an expression of thanks for a speech at the opening of parliament, but the Senate had made use of addresses “for several significant purposes” in the first half of the 20th century.
Labor’s Senate leader, Penny Wong, argued it was up to the Senate to act because of the failure of the prime minister, Tony Abbott, to act. She argued Heydon had been compromised by his own behaviour.
“Put very simply, it is unacceptable for a royal commissioner who is conducting a politically charged inquiry to be politically compromised,” she said.
Wong played down the defeat, arguing an evenly divided Senate “says everything Australians need to know about Tony Abbott’s partisan and divisive royal commission into trade unions”.
“Tony Abbott’s royal commission grows more discredited by the day. It has divided the country, and today it divided the Senate,” she said in a statement.
The attorney general, George Brandis, said the motion, if passed, “would have embarrassed the governor general” by asking him to ignore the advice of ministers.
“The attack on a very illustrious Australian jurist ... is utterly contemptible,” he said.
Brandis argued that if unions had a problem with Heydon they should launch court action. The Australian Council of Trade Unions has not yet said whether it will apply to the high court or federal court, following Heydon’s decision last week to reject union applications to disqualify himself on the basis of apprehended bias.
Brandis said: “If the Senate were to pass this resolution it would be an interference with judicial process and a violation of the separation of powers.”
Xenophon said he was not supporting the motion because the governor general ought to act on instructions of the executive, but he had “very serious concerns” about the way that the royal commission had operated in some respects.
The South Australian independent senator added that he believed Heydon continuing the role could be counterproductive to the commission’s work.
In question time in the lower house, Labor’s employment spokesman, Brendan O’Connor, seized on the “revelations today that lawyers working for the royal commission personally coached the disgraced Kathy Jackson about the issues on which she would be examined”.
In August 2015, a federal court judge ordered Jackson to pay the Health Services Union about $1.4m. Jackson, a former national secretary of the HSU, had used funds from the National Health Development Account (NHDA) without authorisation, the court found.
O’Connor referred to a file note of a phone call on 25 July, 2014 in which Fiona Roughley, a junior counsel assisting the royal commission, advised Jackson of the plan to question her five days later about the NHDA.
The note said: “Fiona said that this [hearing] was being done for a number of reasons: A. The commission has since the last hearing obtained additional material relating to the NHDA; B. The commission intends to hold the hearing as there is a good chance the material will come out in the media shortly; C. To give Kathy the chance to respond to the evidence and to some of the claims being made in the media regarding the NHDA.”
The note said Roughley had also told Jackson “that she should try and remember some examples of who the cash withdrawals from the NHDA were given to”.
Abbott, responding to O’Connor’s question, said the commission had acted without fear or favour. “The claim that the royal commission has gone soft on Kathy Jackson is entirely false,” the prime minister said.
The government’s Senate leader, Eric Abetz, said: “As I understand it, Kathy Jackson complained that she felt that she had been ambushed by the royal commission and had been treated very harshly.”
Labor had postponed debate on the Senate motion several times amid negotiations with crossbenchers. The issue prompted intense debate about the appropriateness of asking the governor general to act independently.
Abetz said the Labor party had “jettisoned their so-called article of faith since 1975 that the governor general must act on the advice of his or her ministers, in a shabby abuse of process”. He was referring to the dismissal of the Whitlam Labor government by the then governor general, Sir John Kerr.
Laing provided advice to Wong on the issue last month. The clerk said the Senate had passed a motion in 1931 urging the governor general to refuse to approve regulations in the current session that were the same in substance as regulations already disallowed by the Senate, and a motion in 1914 asking the governor general to submit six constitution alteration proposals to the people even though they had not been passed by the House of Representatives.
“In summary, an address is the appropriate form for communications at the highest level between a legislature and another arm of government, namely, the executive,” Laing wrote in a letter last month.
Brandis on Tuesday referred to the way the then governor general, Sir Isaac Isaacs, dealt with a similar Senate resolution in 1931. Isaacs said his plain duty was “to adhere to the normal principle of responsible government by following the advice of the ministers who are constitutionally assigned to me for the time being as my advisers, and who must take responsibility of that advice”.
“If, as you request me to do, I should reject their advice, supported as it is by the considered opinion of the House of Representatives, and should act upon the equally considered contrary opinion of the Senate my conduct would, I fear, even on ordinary constitutional grounds, amount to an open personal preference of one house against the other – in other words – an act of partisanship,” Isaacs said at the time.
